So, What Happens to Adoptees “Left Behind?”

By Gregory D. Luce on March 23, 2016 — 5 mins read

For some it is an agonizing and thankless political decision to make: moving forward with compromised legislation that will unseal original birth certificates at the expense of the “left behind.” And if this interests you and you already know what I mean by the “left behind,” you can skip my next paragraph. Why? I started writing these posts with the hope of educating people who are interested in or new to adoptee rights but don’t know a whole lot about specific issues (take my wife, for instance, or her friends and family with whom she shares my posts). Thus, some explanation first.

The “left behind” is an adoptee activist term. It is used to refer to adult adoptees in some states who are nominally “given” the right to access their original birth certificates, only to have that access denied by a birth parent who doesn’t want the information released. This is known informally as the “disclosure veto,” a decision in which a birth parent says “nope, you cannot release the truth to my child.” In the political and legislative fight to declassify original birth certificates, new laws (and some laws nearly forty years old) have created the disclosure veto. These laws allow open access to the vast majority of adoptees, at the expense of a tiny few (basically, less than one percent). Thus, once passed, compromised legislation with disclosure vetoes negatively affects a small number of adoptees, the so-called “left behind” who, despite newly opened records for most adoptees, still cannot get their own original birth certificates.

I want to know what happens to adoptees who are “left behind.” No matter your politics as an adoptee, adoption activist, or a human who cares for other humans, we need to address that adoptees will be left behind. And I want to know what we can do to prevent it and, if possible, to rectify it. I have some loosely thought out ideas and encourage others to think about and develop more.

Pass Clean Bills. Uhh, doh. It is the obvious priority. Avoid creating a separate and unequal class of adoptees by passing legislation that provides everyone unrestricted access to their original birth certificates. Period.

Develop an Actual Full-Blown Strategy. It seems the answer to what happens to the left behind, at least currently, is specifically this: nothing. That’s a huge problem. If it is part of your political and legislative strategy to sacrifice some adoptees for the benefit of the privileged, at least have some lasting and proactive strategy to address those you sacrifice. And it’s not enough to say, well, we’ll just have to come back later and amend the law again to take care of that leftover business. While technically a possibility, that strategy is unlikely to deliver anything else substantive for many years. Similarly, if it’s your strategy to kill legislation that contains disclosure vetoes, what’s the full-out strategy for the vastly larger number of adoptees who won’t get any access at all? Just like the so-called deformers, you are in the same boat, and I’ll repeat the promise that this boat floats upon: a promise to come back again. Which is roughly but not entirely the same as Not. Going. To. Happen. So what is a full-blown strategy that includes the reality of the left behind?

Legal Advocacy. In some ways, a disclosure veto clarifies and narrows the overall legal issues. Currently, activists are arguing to legislators and to the public about whose rights should prevail when an adoptee receives truthful information that ultimately identifies a birth parent. With a disclosure veto, exercised by a birth parent, suddenly you have a much narrower and clarified legal issue: whose very specifically identified rights should prevail in a court of law? Should it be the right to truth, identity, and civic equality or the “right to privacy” of birth parents? Legislatively, it’s been a mixed bag, for all sorts of reasons, but probably most of all because a rights-focused argument resonates in vastly different ways among all sorts of folks. But how about putting those rights to a much narrower legal test? The community has plenty of talented and dedicated lawyer-types who could develop legal strategies to challenge in court the use of a disclosure veto. Why not harness that power and create a group or task force (or maybe a special committee with a crappy acronym) that could advise and help local attorneys in challenging the disclosure veto, whenever and wherever it is exercised? If we end up leaving people behind, and we inevitably will as uneven political fights continue to move forward, we need to have a backup strategy other than the politically unrealistic “we can go back later and correct that shit.” Besides, having a core but small team of dedicated activist lawyers may lead to additional legal issues for adoptees that get addressed and pursued in new or novel ways.

National Website/Data Clearinghouse. You cannot challenge disclosure vetoes legally without having an adoptee mildly pissed off and willing to do something about it. And if people have no idea where to turn after being denied their original birth certificates, then we’ll never get a good and aggrieved client whose case may actually cause a glitch in the matrix. Why not develop an online presence and a national data clearinghouse made up of data and resources shared freely and openly within all adoptee activists? Some are doing this already, like Bastard Nation or a number of the state-oriented advocacy groups. But the statistics may not always be up to date, may be heavily guarded or hard to find, or may be limited in scope based on geography or the particular political bent of the organization (Bastard Nation, for instance, generally only publishes data from their bastardized states). There should be an open, accurate, and comprehensive set of data and resources that remain transparently gathered and readily distributed. And, in doing so, it may give adoptees left behind information about where to go to find resources and to challenge a disclosure veto.

These are, of course, just some ideas. And ideas from someone new to the fight and not ignorant of the been there/done that crowd. Because maybe we have been there. But then again, maybe it’s now a different time.

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Let’s not forget that each year a certain percentage of people die. That is just what we do…We Live and then We Die. Missouri has approximately 500,000 adoptees. If .95% of the general population dies each year then approximately 4,750 of those people would be adoptees. The total number of requests for no contact, according to AAC records and updated Ohio records, in 8 states put together was 861 to date since 2000.

Conclusion…every person who fights against legislation that is progressive is fighting to leave behind many more adoptees because thousands more will be dead and gone before we see a “clean” bill that makes it all the way through the legislative process.

It’s high time for a (get ready for some alliteration) review and revision of rhetoric around rights, reunion and repetetive returning for another slice of the pie. We plan to do that in our workshop at the AAC conference in Denver next week: Colorado: Two Years, Five Bills, Four Unanimous Votes.

1. The movement is, I believe, nearing the point of having a national clearinghouse. We’ll have to see if one of the existing organizations can fill that role or if a new one need to be created. Either way it is essential.

2. A legal think tank. One wing of the clearinghouse, perhaps. I see some legal options which could be wisely chosen and pursued.

One thing I’d like to see is a bullet-proof (or legislator-proof) argument that will keep legislators from offering DVs (or worse) as the answer to “birthparent privacy”.

Once upon a time, there was the “implied promise”. Several ways to destroy that from appealing to equality, to statistics on actual preferences for “no contact” and DVs filed, to challenging opponents to produce even a FORM that promises eternal anonymity.

But everybody admits that there are going to be some people who simply do not want to be found. What should we do with them? What CAN we do with them?

The obvious answer (to legislators) is to give them special rights equivalent to what opponents THOUGHT they had. Aside from the obvious rights-based argument that access should apply to ALL adoptees, what can we (as activists) say that would make the legislators think that offering DVs would actually be a bad idea?

Here’s how I view it:

There is a mindset that (1) OBC access = reunion and (2) No OBC access = No reunion.

This leads to states providing “birth transcripts” and “identifying information” but not the actual OBC, even in cases where the adoptee has “permission” from all parents or otherwise knows everything that’s on the OBC. “Medical history” workarounds also fall into this category. They assume we want the OBC in order to get the information needed to find our parents.

The corollary assumption is that very few people will be able to find their parents without information provided by the state. By offering a DV, the public can rest assured that the State is protecting the privacy of everyone who requests it. Unfortunately for them, this assurance is an illusion. The general public (and their elected representatives) have NO IDEA what is going on online and especially in the area of DNA testing. All well and good that the Nanny State is keeping the ol’ OBC under lock and key. It does nothing when the adoptee tests at Ancestry.com and gets matched with a second cousin. That means one of the adoptee’s parents and one of the match’s parents are first cousins. The barn door is not just open, it’s been blown off the hinges.

Now what about that DV? That was a signed contract with the State (not just an “implied promise”) to keep that parent’s identity an eternal secret. Not quite working the way they planned, eh? Maybe, just maybe, the State should get out of the secret-keeping business.

A pure legal challenge would be from someone who already knows who the birth parents are and wants the original birth certificate. It will then not be about reunion or curiosity or medical information. It will be about equality. And if we truly believe there is a right to be treated equally, we need to develop that legal theory further. Challenging a disclosure veto may be the best way to put it all on the line, though it will take a great deal of thinking and pickiness to find the “perfect” plaintiff to make that claim.

With respect to this: “Similarly, if it’s your strategy to kill legislation that contains disclosure vetoes, what’s the full-out strategy for the vastly larger number of adoptees who won’t get any access at all? Just like the so-called deformers, you are in the same boat, and I’ll repeat the promise that this boat floats upon: a promise to come back again.”

The difference is, Bastard Nation has actually gone back. Multiple places. We killed veto bills in RI for years before getting a clean bill (in coalition with Access RI). And we’d do it in a lot more states if some groups in those states wouldn’t attack us and actively try to prevent clean bills in favor of their veto legislation. Moreover, our goal is equality. Not access for most. That takes an entirely different legislative approach.

I will note that in most cases, deformers clearly don’t care about actual adoptee rights legislation, in fact, they’d rather see clean bills fail if they’re propounded by BN, out of their own petty jealousies. We’re getting zero help with the Hawaii bill, which is unrestricted access to the court file. The AAC only managed to submit written testimony three out of four hearings so far, even though they were asked each time. There have been zero sharing of our action alerts on the issue from any other group. Meanwhile, they’re busily praising the veto bills in IN and OH, and supporting the veto/redaction bill in MO, and lauding CO as an example of why we should do incremental legislation (lord help us).

Moreover, Bastard Nation has been trying to figure out what to do with veto states where people have gone in and screwed it all up by passing veto/redaction legislation. We’ve kicked around the notion of supporting prospective only clean legislation in those states to stop the bleeding, and then going back to fight the DVs, both legislatively and legally (although I hold out little hope with respect to legal challenges).

With respect to Colorado, sorry, but that’s no model for how to do things Rich. That is and was a hot mess. I admire your perseverance in getting what sort of amounts to unrestricted access, at least to the court file, you’re certainly an exception in that regard. The truth is as we have seen in most other veto states, activists don’t come back to try to fix it, and when they do, they fail. So the fact that ONE state managed to turn a nightmare into something resembling unrestricted access after a lot of tortuous maneuvering is not, IMO, a reason to support incremental legislation. They’re not even TRYING in NJ, Ohio, Indiana to “come back for the left behinds”. In fact, in Ohio, they actively tried to shut up the left behinds. They still are ignoring them in favor of their ticker tape parades and that rather appalling display at the ANC conference where awards called the BETSIES were handed out. Self-aggrandizement much?

As far as the comments from the veto crowd goes, you guys still don’t get it. Perhaps the dumbest argument I’ve seen yet is the “people die every day” argument. Deformers have to stop thinking about this in terms of search and reunion. Especially now with basically any other way of searching easier and faster than getting an original birth certificate or even the court file. Moreover, Bastard Nation believes in filling in the gaps so that the search and reunion issue (“we must pass veto bills so dying adoptees can have access”!) are addressed through the community rather than legislatively. I personally offered to buy DNA kits and provide search assistance for any MO adoptee who felt they needed to search for urgent medical reasons. That offer was deleted and not shared by MO deformer activists. In the meantime, their bill is stuck. So much for all those “dying adoptees”.

I really wish that everybody would get out of adoptee rights legislative activism that doesn’t know what they are doing, (especially if YOU AREN’T EVEN AN ADOPTEE) and stop conflating your search and reunion and “support” and mental health theories with legislative activism and equal rights. Those of us few who are adoptee rights and equality activists stay out of meddling in your conferences and workshops and don’t get involved in your money making book projects and keynote speaking fees. Stick to what you know. The worst thing to ever happen to adoptee rights was when the reunionists and professional conference goers and speakers decided, particularly once Bastard Nation came along, to jump in the legislative arena, co-opted the language of adoptee rights, and then proceeded to try to (and sometimes succeed) in passing anything but.

Excellent piece, Gregory. Thanks for this comment, Shea. As a SC sealed records adoptee from 1952, reunited with my mother and her family’s side at age 40–she died 1 year later without disclosing my father’s i.d.–there is no reason in the world for me not to have my o.b.c. before I die (I survived a brain hemorrhage at 57). It is my right as much as any adoptee’s.

Adding another “bravo” to Shea. I agree that where everything went wrong was mixing up OBC Access with reunion, medical need, “adoptee are dyin'” and all that. As another commenter said, it is now so easy to find relatives by a variety of means including DNA and the internet that the supposed “promise” that sealed records protect birthmothers who do not want to be found is actually meaningless. In reality it always has been, people have been searching and finding and making contact to bio relatives for over 50 years, and sealed records have only stopped a few, less and less every year. Sealed records protect no one. Legislators need to get that through their heads and proceed from there to fix bad laws.

What caused such confusion is the tactics of the compromisers and Primal Wound believers and “healers” focused on reunion and medical need and emotional scars as a reason to open records. This eclipsed the simple concept of adoptee access to their own OBC as a human and civil right regardless of why they want the information contained there or what they do with it.

The idea of going back and challenging the laws that leave some adoptees behind is a good one, but I leave it to the legal minds to work out how to do this. As a birthmother, not an adoptee, I have always realized that my role is as a supporter following the lead of adoptees like those in BN. It is not my place to tell adoptees how to go about seeking open records, or to seek “rights” for surrendering mothers that we all gave up when we surrendered. Adoptees being able to get their own OBC should be none of our business except to support clean legislation wherever it is introduced.

I talk to myself all the time. 🙂 Yes, I have. I was just talking to someone last week about it. Although I guess there may also be some definitional issues about the left behind, like the person I recently talked to who was in touch with her extended birth family. Through that, she knew (but without going through the expensive and convoluted process to confirm it) that her birth mother had or would file an affidavit of nondisclosure.

A friend of mine was actually surprised that her (known) biomother had NOT filed a disclosure veto just to spite her. This was in Ohio so the process was neither expensive nor convoluted.

In New York, I could have tried to get my OBC by dragging my sweet mom into court with me – but why subject us to that only to be told by a judge that I “didn’t need it” because I already knew who my mother is?

Here in Australia, all adoptees over 18 have the right to access their original birth certificate and all birth parents, once the adoptee is 18 can access the records of the adoption placement.

There is an optional ‘contact veto’ so if you don’t want to be contacted, you register yourself (whether adoptee or parent). Unfortunately, if the child was born prior to 1973 I think, and the parents unmarried (usually the case) it was not possible to list the name of the birth father, so unless you have a cooperative birth mother, or a birth father who searches for the child, locating fathers can be difficult and frustrating.

The perfect lead plaintiff would be someone whose bioparent vetoed “disclosure” but who had the support of said bioparent’s family. The rest of the class would be those who simply know the information. Their success, or lack thereof, with post-reunion relationships would be irrelevant.

Excellent point, Heather. Way more adoptees will die each year than those denied access because of disclosure vetoes. I’ve been in this stupid fight since the 1970s and the progress we have legally made in NY amounts to Zero. Yes, there is awareness, and a movement, but the law is still the same old same old law it was since I gave up my daughter in 1966, the same law that was passed in 1936.

Is dirty legislation going to make them magically stop dying, Lorraine? Will DVs allow them to transition to immortality? No? Then it isn’t a “excellent point,” is it. It’s pandering and it’s stupid. Adoptees have always died and will continue to die, and nothing about access is going to stop that. More adoptees die every year than access their records, too. What’s the relationship there? Oh, wait, there still isn’t one. I swear, the only thing more irritating than these logic deficient arguments is when you guys start patting each other on the back for them.

Minnesota’s experience with affidavits of non-disclosure. (135,000 people were adopted in Minnesota between 1935 and 2014.)

First authorized in 1977.

1,340 filed through 12/31/2014 for adoptions ranging from 1935 through 2011.

705 filed retroactively in connection with adoptions occuring between 1935 and 1976.

267 filed concurrently on adoptions occurring between 1977 and 1982.

368 filed concurrently on adoptions occurring between 1983 and 2014.

65 have been filed since 2000.

No affidavits have been filed since 2011.

Affidavits filed in connection with adoptions before August 1, 1982, are not subject to challenge by adoptees on any statutory basis.

Affidavits filed with agencies to prohibit the release of birth parents’ identifying information by the agencies are subject to a court challenge, with birth parents bearing the burden of proof as to why the information should remain confidential. This applies to approximately 635 affidavits if, as has been reported by personnel from major adoption agencies in Minnesota, affdavits filed with agencies relating to release of identifying information by the agencies were automatically filed with the State as well. (As a result, a petition for release of the OBC could be summarily rejected by the court , whereas a petition for release of the same information would at least receive consideration.)

972 adoptees are subject to affidavits filed in connection with adoptions occurring before August 1, 1982. These people, all of whom are now adults, have no possible route to release of their information by either the state or an agency. Some, no doubt, are now dead.

My sympathies lie with those adopted before August 1, 1982, whether or not their information is subject to an affidavit of non-disclosure. Most of all, they lie with those who, like an 83 year old client of mine, stand a good chance of dying before receiving their information. Others have time on their side.

I do not consider this a reunion-oriented position. Those of my client’s age have few, if any, with whom to reunite. They, like all adoptees, have their reasons for wanting this information. It is not our place, as it is not the place of legislators, to pass judgment on their motives. It is their information and should be their right to access it. They are not activists. They are simply men and women who’ve spent their lives in ignorance and wish to know their origins before they die, not just for themselves but for their children and grandchildren.

That requires a compromise here in Minnesota, but one which advances the interests of all to some degree. Bills which establish disclosure vetos, in whatever form, do not advance the interests of all but only some. Opening records for some, even the overwhelming majority, does not warrant setting any adoptees completely adrift, forever denied access to what should be theirs as of right. If your state does not already recognize disclosure vetoes, do not accept what we’ve lived with in Minnesota for the past 39 years.

As I write, it is likely that our efforts here in Minnesota have failed yet again. Although we received a successful committee hearing in the Senate last week, it appears we did not make it through the requisite number of committees by today’s deadline.